KPA Lawyers – September 3, 2020

Not too long ago, a Regina man sued Facebook and a number of unnamed defendants for posting material on social media accusing him of rape.

I wasn’t involved in the case but I was consulted by Vice regarding my opinion about whether social media companies can be held liable for defamatory material that is shared on their platforms.

If you’re curious about what I think about that, you can read the Vice article, but it got me thinking about what would have happened if the case had proceeded in Ontario.

Anti-SLAPP: What is it?

Whether it is within the context of sexual assault survivors sharing their stories, or any other topic that concerns the public interest, people are understandably afraid to raise their voices for fear of being sued.

Many people, however, are unaware that Ontario has laws that protect people who speak out about issues where some segment of the public has a genuine stake in knowing about those issues. These are called Anti-SLAPP laws, where SLAPP means “strategic lawsuits against public participation”.
Specifically, section 137.1(3) of the Courts of Justice Act states that, “on motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.”

In plain English, this section means that a person who is sued for expressing themselves on a matter of public interest can potentially swiftly dismiss the lawsuit without trial. It’s important to keep in mind that a matter of public interest is not the same as a matter about which the public is merely curious or has a prurient interest. Public people are entitled to private lives. Expressions that relate to private matters are not converted into matters relating to the public interest simply because those expressions concern people in whom the public has an interest (like celebrities) or involve topics that may be entertaining.

Little or no financial risk of motion

To add further teeth to this important law, there is very little financial risk is filing such a motion with the court. Specifically, if the defendant wins the motion, then there is a presumption that they are entitled to be reimbursed for their legal costs on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. This is called a “cost award”. In other words, most or all of their legal fees would be covered.

On the other than, if the defendant loses the motion and the case continues, then there is a presumption that the plaintiff is not entitled to be reimbursed for their legal costs in relation to the motion, despite the fact that the plaintiff won the motion.

In other words, there is little or nothing to be lost and a lot to be gained for a defendant when considering bringing an Anti-SLAPP motion.

Balancing Test

However, section 137.1(3) is balanced by section 137.1(4), which prohibits a judge from dismissing the case if all of the following three conditions are met:

(1) there are grounds to believe that the case has substantial merit,
(2) there are grounds to believe that the defendant has no valid defence in the case and
(3) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

I should mention that this article is not intended as legal advice, and you should always consult a qualified lawyer if you have questions about your own unique circumstances.
Ryan Keeney is a founding partner at KPA Lawyers, and practices in various areas of civil litigation, including defamation and Anti-SLAPP law. He can be reached at ryan@kpalawyers.ca.